THE COMMISSIONER OF INCOME TAX vs. MAHANANDA S/O SHIVAPPA HANCHINAL

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 18TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR.JUSTICE ALOK ARADHE

AND

THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

M.F.A. CROB NO.100149/2014 (MV) C/W M.F.A.NO.101623/2014 (MV)

IN MFA CROB NO.100149/2014

BETWEEN

CROSS OBJECTORS NO.2 AND 3 ARE MINORS R/BY MINOR GUARDIAN CROSS OBJECTOR NO.1

2 5. SRI CHANDSAB APPASAB JAMADAR AGE: 52 YEARS, OCC: STUDENT, R/O: KOTHALI, TQ: CHIKODI DIST: BELGAUM ... CROSS OBJECTORS (BY SRI. SANTOSH S HATTIKATAGI, ADV.)

AND

THE DIVISIONAL CONTROLLER NWKSRTC, CHIKODI DIVISION, CHIKODI. ... RESPONDENT (BY SRI. S.C.BHUTI, ADV.)

THIS MFA CROB IN MFA NO.101623/2014 FILED U/O 41 RULE 22 OF C.P.C., AGAINST THE JUDGMENT AND AWARD DATED 11.02.2014, PASSED IN MVC NO.2689/2012 ON THE FILE FO THE SENIOR CIVIL JUDGE AND MEMBER MACT, CHIKODI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO.101623/2014

BETWEEN:

3 AND

RESPONDENTS NO.2 AND 3 ARE MINORS R/BY THEIR NATURAL GUARDIAN RESPONDENT NO.1.

THIS MFA IS FILED U/SEC. 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 11.02.2014, PASSED IN MVC NO.2689/2012 ON THE FILE FO THE SENIOR CIVIL JUDGE AND ADDL.MACT, CHIKODI, AWARDING THE COMPENSATION OF RS.21,61,721/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

THIS MFA CROB AND THE APPEAL COMING ON FOR FINAL HEARING THIS DAY, ALOK ARADHE, J, DELIVERED THE FOLLOWING:

4 JUDGMENT

MFA CROB No.100149/2014 has been filed by the claimants against award dated 11.02.2014 seeking enhancement of compensation, whereas MFA No.101623/2014 has been filed by the Corporation in which challenge to the award passed by the claims Tribunal has been made on the ground of liability as well as quantum. Since the cross objection as well as appeal arise out of the same judgment, they were heard together and are being decided by this common judgment. 2. Facts in nutshell are that, on 26.10.2012 at about 4.30 p.m. when deceased along with two others was returning on his motorcycle near Chinchani village, the driver of the offending bus which was being driven in a rash and negligent manner, dashed against the motorcycle of the deceased as a result which

5 deceased sustained grievous injuries and expired. 3. Thereupon the claimants filed a petition under Section 166 of the Motor Vehicles Act claiming compensation inter alia on the ground that the deceased, at the time of accident, was aged about 28 years and was Class-I Contractor and had undertaken several works of Panchayath Raj Engineering Department, Belgaum. The claimants therefore claimed compensation on account of the death of the deceased. Respondent No.2 was proceeded ex parte. The respondent No.1 filed objection in which inter alia the factum of accident was denied. The age, occupation and income of the deceased was denied and it was stated that the deceased did not have any driving licence and was driving the motorcycle in a rash and

6 negligent manner as a result of which the accident took place. 4. The Tribunal on the basis of the pleadings of the parties framed the issues. The Tribunal inter alia held that the accident took place on 26.10.2012 in which the deceased sustained injuries and expired. However, the Tribunal by taking into account the First Information Report namely Ex.P1, complaint- Ex.P2 and charge sheet-Ex.P6 as well as the evidence of RW1, who was not an eyewitness to the accident held that the deceased contributed in causing of the accident to the extent of 20% and recorded a finding that the instant case was a contributory negligence. The Tribunal awarded a sum of Rs.26,50,151/- on account of loss of dependency and a sum of Rs.10,000/- each towards funeral expenses and medical expenses

7 and Rs.10,000/- each on account of loss of consortium and loss of estate and Rs.20,000/- on account of loss of love and affection, whereas a sum of 12,000/- was awarded towards funeral expenses and transportation of dead body. In all, Rs.27,02,151/- was awarded compensation out of which after deduction 20% of he compensation, the claimants were entitled for payment of a sum of Rs.21,61,721/-. In the aforesaid factual background, this appeal and cross objection has been filed. 5. Learned counsel for the appellant submitted that the deceased was under the influence of alcohol and therefore, the accident took place. However, the aforesaid aspect of the mater has not been appreciated by the claims Tribunal. That the amount of compensation awarded by the claims Tribunal is on the higher

8 side. It is further submitted that the deceased ought to have been held liable to the extent of 50% in causing the accident. 6. We have considered submissions made by learned counsel for the appellant and have perused he records. 7. At the outset, it is pertinent to mention here that the appellant Corporation nowhere in the statement of objection has taken the plea that at the time of the accident, the deceased was drunken, due to which the accident took place. Therefore, the statement made by the RW1 in his evidence cannot be proved in the absence of record. The Tribunal merely on the basis of FIR, as well as complaint and charge sheet-Ex.P6, has held that deceased had contributed to the extent of 20% in causing the accident. The aforesaid finding is cryptic

9 and is perverse as the evidence of record has not been considered. On the basis of First Information Report, complaint and the charge sheet, it could not have been held that the deceased himself caused the accident. On perusal of IMV report-Ex.P4, it is evident that the front windscreen as well as right side headlight and indicator of the bus was found to be broken. Therefore, it is evident that the bus had hit the motorcycle, which is a smaller vehicle, from the right side whereas the deceased traveling from the left side of the road. Therefore, we are unable to agree with the findings recorded by the Tribunal with regard to contributory negligence, which otherwise is cryptic and has been recorded without assigning any reason. That in the evidence of RW1, the sole reason for the accident has been stated that at the time of accident, the deceased was

10 drunken. However, as stated supra, the aforesaid statement cannot be read in the absence in this regard. Therefore, we hold that the accident took place on account of rash and negligent driving of the bus by the driver as a result of which the deceased expired. 8. We may advert to the quantum of compensation. The deceased was working as Class-I contractor and his income tax returns has been placed on records as Ex.P14. From perusal of Ex.P14, it is evident that his yearly income was Rs.1,38,570/-. Out of the aforesaid amount, 1/4th of the amount has to be deducted towards personal expenses as there were four dependants. Thus, the yearly income of the deceased comes to Rs.1,03,927/-. In view of the law laid down by the Hon’ble Supreme Court in the National Insurance Company Ltd. V/s

11 Pranay Sethi and others, 2017 ACJ 2700, taking into account the age of deceased, which was 28 years at the time of accident, 40% of the amount is required to be added towards future prospects. Thus, yearly income of the deceased comes to Rs.1,45,498/-. If the multiplier of ‘17’ is adopted, the claimants are entitled to a sum of Rs.24,73,474/- on account of loss of dependency. Admittedly, the deceased has left behind a widow, two minor children and parents. Therefore, in view of law laid down in Magma General Insurance Company Ltd. V/s Nanu Ram and others, ACJ 2018 Page 2782, they are entitled to Rs.40,000/- each on account loss of consortium and thus, the aforesaid amount is quantified to Rs.2,00,000/-. In addition, the claimant would be entitled to Rs.30,000/- under conventional head. Thus, the compensation payable to the claimants is

12 assessed at Rs.27,03,474/-. Instead of 27,02,151/-. The enhanced amount of compensation shall carry interest @ 6% p.a. 9. To the aforesaid extent, the award passed by the Tribunal is modified. 10. The amount deposited by the appellants before this Court be transmitted to the Tribunal. 11. In the result, the appeal filed by the Corporation is dismissed and the cross objection filed by the claimants is partly allowed.

SD/- JUDGE

SD/- JUDGE

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